Citation Nr: 1511971
Decision Date: 03/20/15 Archive Date: 04/01/15
DOCKET NO. 12-14 372 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to a rating in excess of 30 percent for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and his daughter
ATTORNEY FOR THE BOARD
A. Adamson, Counsel
INTRODUCTION
The Veteran served on active duty between July 1962 and December 1964.
This appeal comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
The record before the Board includes the Veteran's paper claims file and an electronic file within Virtual VA.
The Veteran and his daughter testified before the Board via videoconference hearing in December 2013. A transcript of the hearing is associated with the electronic claims file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Board is of the opinion that additional development is required before the Veteran's claim is decided.
On remand, the RO should provide the Veteran with a new VA examination addressing the current severity of his hearing loss disability. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). VA's duty to assist also includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened or the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2014).
In this case, the Veteran was afforded a VA examination in November 2011. At his December 2013 hearing, the Veteran indicated that his hearing is far worse than that denoted in the November 2011 report. The Board further observes that more than three years has passed since the November 2011 examination. Thus, this examination is remote and there is an indication of worsening. Remand in this case is warranted in order to afford the Veteran a new VA examination.
Further, the Board recognizes several abnormalities in the November 2011 examination report, which require further explanation. Initially, pure tone threshold readings in the right ear are noted, in decibels, as 0, 55, 60, and 65 at 1000, 2000, 3000 and 4000 Hertz, respectively. There is no indication in the report as to why such an unusual pattern would exist between 1000 Hertz and 2000 Hertz. On remand, it would be helpful to the Board if the VA examiner could discuss why such an abnormality may exist. Moreover, the November 2011report shows that the examiner could not test using speech discrimination testing for the left ear, yet the examiner determined that the use of speech discrimination is appropriate for this Veteran. On remand, the Board also asks the VA examiner to explain why speech discrimination would be appropriate in a case where the examiner could not test.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA audiological examination to assess the current severity of his bilateral hearing loss. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, must be conducted. The examiner must specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. The examiner must also specifically comment on the effects of the Veteran's hearing loss on his occupational functioning and daily activities.
The examiner is also asked to review and comment on the November 2011 VA examination report. In particular, it would be helpful to the Board to understand why the Veteran's decibel readings may have been 0 at 1000 Hertz and then 55, 60 and 65 at 2000, 3000 and 4000 Hertz, respectively. Further, the examiner is asked to discuss the finding that the use of speech discrimination score was appropriate for the Veteran, despite the notation that he could not be tested in the left ear.
2. Review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate whether a rating in excess of 30 percent is warranted for the Veteran's bilateral hearing loss. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.
The purpose of this remand is to assist the Veteran with the development of his claim. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).